United States District Court, E.D. Pennsylvania
MEMORANDUM AND ORDER
civil, employment action has been brought before this Court
for disposition of the Motion for Summary Judgment of
Defendant, Fred Beans Motors of Doylestown, Inc., d/b/a Auto
Express of Doylestown. After careful review of the record
evidence in this action, the Motion shall be GRANTED IN PART
and DENIED IN PART.
about January 2, 2017, Plaintiff, Eric Opper began working as
an automotive repair technician for Defendant Fred Beans
Motors of Doylestown at its Auto Express location at 838
Easton Road in Doylestown, Bucks County, Pennsylvania.
(Pl's Compl., ¶s 8, 12; Def's Statement of
Undisputed Material Facts [“Def's
Statement”], ¶ 18). At the time of his hire,
Plaintiff was 51 years old and had spent most of his working
life, since 1984, in the automotive repair industry.
(Pl's Compl., ¶ 11; Pl's Counterstatement of
Material Facts [“Pl's Counterstatement'],
Beans Motors and Auto Express are both owned by Fred Beans
Holdings, Inc., which is the parent company for some 19
automobile dealerships and other businesses, all of which
have a centralized Human Resources Department located at 3960
Airport Boulevard in Doylestown, PA. (Complaint, ¶ 8;
Def's Statement, ¶s 1, 2; Declaration of Daniel
Milewski, annexed as Exhibit “A” to Def's
Motion for Summary Judgment, ¶2; Deposition of Daniel
Milewski, annexed as Exhibit “E” to Pl's
Response to Def's Motion for Summary Judgment
(“MSJ”), at p. 114-115). At the time of his hire,
Plaintiff was paid at the rate of $15 per hour whereby he was
paid for the number of hours worked and not by the job. It
was understood that if Plaintiff had a favorable job review
after he had worked 60 days, his rate of pay would increase
to $16 per hour. Plaintiff in fact did receive a positive
60-day review and the $16 per hour rate in March, 2017. His
hourly rate was again increased to $17 per hour two months
later, in June, 2017. (Exhibit “A-4” to Def's
also understood at the time of hire that Plaintiff would
obtain his certification to conduct Pennsylvania state
emissions inspections and that when he did so, he could
command a higher rate of pay. Plaintiff secured his
certification in August, 2017 and his rate was then increased
to $19 on the “flat-rate” pay plan. (Exhibit
“A-4, ” Def's MSJ). Then, a few weeks later
and on the basis of Plaintiff's reporting that he had
another job offer from a nearby dealership, Plaintiff's
hourly rate was again increased to $23 per flat-rate hour.
(Exhibit “A-4” to Def's MSJ).
all appearances, Plaintiff's job performance was good and
thorough, although his production was described as “not
better than average.” (Exhibit “C” to
Def's MSJ, Deposition of William Dannehower, at p. 67).
He received favorable performance reviews from his
supervisor, William Dannehower, with comments such as:
“If every technician was as detailed as Eric, we would
be able to deliver the best service;” “Eric does
not give up! He will research until he finds the answer. He
is Auto Expresses Trainer. He helps all the younger
technicians;” and “on time, dependable, and good
communication.” (Exhibits “H” and
“I” to Pl's Response to Def's MSJ).
Plaintiff's compensation structure was changed from
hourly to the flat-rate system, it was Plaintiff's
understanding that he was to be credited with 5/10 (1/2) of
an hour pay for assisting other technicians with their repair
jobs. Plaintiff also came to believe that he wasn't being
fully compensated under the flat-rate system for the work he
was performing and he began to complain about his pay to his
co-workers. (Exhibit “D” to Def's MSJ
[Plaintiff's Deposition], pp. 169-187). At times, these
complaints took the form of Plaintiff yelling and screaming
about his hours being terrible and not being treated fairly,
swearing and throwing tools. (Exhibit “B” to
Def's MSJ, ¶ 7; Exhibit “F” to Def's
MSJ [Deposition of Jeffrey Pursell], pp. 50-55; Exhibit
“H” to Def's MSJ, pp. 24-26).
March 31, 2018, Plaintiff registered an anonymous complaint
with Lighthouse Services, Inc., Fred Beans' outside
ethics/employee reporting hotline, against one of Auto
Express' Assistant Service Managers, Nicholas Burella.
Specifically, Plaintiff alleged that Burella had groped him
twice and that he had witnessed Burella groping some other
employees as well. Plaintiff's Lighthouse report also
stated that Plaintiff “told him [Burella] to never
touch me again and that it's assault…. I have
noticed that my scheduled hours and flat rate hours are going
down since this happened. There are also flat rate hours that
are unaccounted for as well.” (Exhibit
“A-5” to Def's MSJ). Plaintiff also lodged a
private criminal complaint against Burella with the Plumstead
Township Police Department, which initiated an investigation.
upon receipt of Plaintiff's complaint, Fred Beans Human
Resources Director Dan Milewski also commenced an
investigation, meeting with William Dannehower, who in
addition to being Plaintiff's supervisor was Auto
Express' general manager, and subsequently individually
interviewing Plaintiff, Burella, Auto Express' other
Assistant Service Manager (“ASM”) Jeffrey
Pursell, and the other auto repair and lube technicians with
whom Plaintiff worked. (Exhibits “A-6” -
“A-16” to Def's MSJ). At the conclusion of
the investigation, Fred Beans' management had just one
employee (other than Plaintiff) who variously stated: (1)
that he saw Burella touch Plaintiff “in an
inappropriate way;” and (2) that he “saw
something out of the corner of his eye” but “was
not sure what happened when Nick was passing by Eric.”
(Exhibit “A-13 to Def's MSJ; Exhibit
“H” to Def's MSJ, pp. 27-28, 31-335, ).
Burella denied ever touching Plaintiff or anyone else
inappropriately or ever touching Plaintiff or anyone else
intentionally. All of the other employees denied having seen
or having any knowledge that Plaintiff had been groped or
knowledge of any other inappropriate physical contact between
any of the employees or between Burella and any of the
employees, although most of those interviewed stated that all
of them (including Plaintiff) had talked and joked about
matters of a sexual nature. (Exhibits “A-6” -
“A-16” to Def's MSJ).
consequence, the only discipline that Burella was given by
Fred Beans was a written warning and then he and the entire
Auto Express staff were required to again undergo sexual
harassment training and training regarding proper workplace
behavior. (Exhibits “A-17” - “A-18”).
At the conclusion of the police inquiry, the investigating
Plumstead Township police officer and the Bucks County
district attorney deemed there to be insufficient evidence to
justify the filing of criminal charges, and that matter
to the closing of the investigations into his complaint,
Plaintiff came to believe that, in addition to not being
properly credited for the work he was doing, Burella was not
giving him work and/or was giving jobs that should have been
Plaintiff's to other repair technicians. (Exhibit
“D” to Def's MSJ, pp. 230-233, 312-314). On
the evening of April 27, 2018, an incident occurred after ASM
Jeff Pursell read Plaintiff his time sheet. Plaintiff asked
if a tire patch job was on the sheet for which Plaintiff
believed he should be credited with 2/10 of an hour. When
Pursell responded that the job was not on Plaintiff's
time sheet, a discussion ensued between the two with
Plaintiff waving his arms and, as reported to Dannehower,
yelling that he “does not work for free, ” and
“do you know how much these tools cost?” (Exhibit
“A-19, ”Exhibit “D” to Def's MSJ,
pp. 319-328). Dannehower issued Plaintiff a counseling form
for the incident which specifically advised Plaintiff that if
he had a concern or problem, he was to follow the chain of
command and talk to a manager first. The form also contained
the following notation:
Mr. Opper was told by Dan H/R that can not act this way. Mr.
Opper will make sure this type of behavior never happens
again. Mr. Opper will treat all employees with respect. This
is a Final Warning. If this happens again the result will be
(Exhibit “A-19” to Def's MSJ).
second counseling form was written on May 18, 2018 arising
out of another incident of Plaintiff complaining that
“he should have gotten a job that Matt got. Eric told
Matt he should have that job and Matt gave that job to
Eric.” (Exhibit “A-18, ” “D, ”
pp. 330-350 to Def's MSJ). On that occasion, William
Dannehower again reminded Plaintiff that he “had been
told that if he gets frustrated or feels being treated
unfairly he needs to discuss with a manager.” (Exhibit
“A-20;” Exhibit “C, ” [Dep. Of
William Dannehower], pp. 90-92, 109-111, 113-117, 129-139).
Then, on July 12, 2018, yet another incident was reported to
Dannehower this time by Jeff Pursell that Plaintiff had
yelled at him and was angry because he wasn't getting
credited with more time for working on a Jaguar. Evidently,
Plaintiff had failed to check the driver side rear caliper
before putting new brakes on the passenger side. After the
customer was notified, he elected to not replace the rear
brakes at that time and Plaintiff was directed to put the old
parts back on the vehicle. Plaintiff apparently began yelling
at Pursell and demanding that he be credited with more time
for the work that he had performed. As a result of this
outburst, Plaintiff's employment was terminated on July
17, 2018. (Exhibits “A-21 - A-22;” Exhibit
“C, ” pp. 143-156 to Def's MSJ).
subsequently commenced this lawsuit on October 2, 2018
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §2000d, et. seq., the Age Discrimination
in Employment Act, 29 U.S.C. §621, et. seq.
(“ADEA”), the Pennsylvania Wage Payment and
Collection Law, 43 P.S. §260.3(a) -
(b)(“WPCL”), and under Pennsylvania common law
for wrongful discharge. Inasmuch as discovery in this matter
has now closed, Defendant filed for summary judgment on June
fundamental principles governing motions for summary judgment
are articulated in Fed.R.Civ.P. 56, subsection (a) of which
A party may move for summary judgment, identifying each claim
or defense - or the part of each claim or defense - on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the
record the reasons for granting or denying the motion.
axiomatic that in considering a motion for summary judgment,
a reviewing court must view the facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Burton v. Teleflex,
Inc., 707 F.3d 417, 425 (3d Cir. 2013); Roth v.
Norfalco, LLC, 651 F.3d 367, 373 (3d Cir. 2011).
“The moving party ‘bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.'” El v. SEPTA, 479 F.3d
232, 237 (3d Cir. 2007)(quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986)). An issue of fact is material and genuine if it
“affects the outcome of the suit under the governing
law and could lead a reasonable jury to return a verdict in
favor of the nonmoving party.” Parkell v.
Danberg, 833 F.3d 313, 323 (3d Cir. 2016)(quoting
Willis v. UPMC Children's Hospital of
Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)).
inferences must flow directly from admissible evidence.
Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014). In order to survive summary judgment, the non-moving
party must present more than a mere scintilla of evidence -
there must be evidence on which a jury could reasonably find
for the non-movant. Burton, supra, (quoting
Jakimas v. Hoffman-LaRoche, Inc., 485 F.3d 770, 777
(3d Cir. 2007)).
noted above, Plaintiff here is advancing two claims of
employment discrimination under federal law and two claims
under Pennsylvania state law - one under common law and one
statutory.We address each claim seriatim.
Count I - Title VII Sexual Harassment, Retaliation
first cause of action, Plaintiff alleges that he was sexually
harassed by Burella, that he was subjected to a sexually
hostile work environment and that he was retaliated against
for filing a complaint of sexual harassment. As we explained
in footnote 3 above, we presume that Plaintiff is proceeding
under 42 U.S.C. §2000e-2 which renders certain
employment practices unlawful. Subsection (a) of that statute
states the following:
(a) Employer practices.
It shall be an unlawful employment practice for an employer -
(1) To fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such ...